Obamacare, waiting for the right court.

Since it's the most unpopular American Law since Prohibition, by now everyone who follows politics and most people who don't know that US District Court Judge Henry Hudson has declared the Individual Mandate portion of Obamacare Unconstitutional.  Supporters of  the law are quick to point out that two other Federal Judges, one in Michigan and one in Virginia have said the opposite... Let's take a quick look at those two first

The first in Michigan was filed by The Thomas Moore,  a Christian legal group and four people who claimed lawmakers exceeded their power under the Constitution's commerce clause, which authorizes Congress to regulate trade.


Judge George Caram Steeh in Detroit said the mandate to get insurance by 2014 and the financial penalty for skipping coverage are legal. He said Congress was trying to lower the overall cost of insurance by requiring participation.

The second suit, brought by Liberty University and five individuals, claimed the health-care reform law didn’t protect against mandatory insurance payments being used to fund abortion coverage. Their claim that the law is unconstitutional was rejected by Judge Norman Moon in Lynchburg.
“Plaintiffs fail to allege how any payments required under the act, whether fines, fees, taxes, or the cost of the policy, would be used to fund abortion. according to District Judge Moon

Judge George Caram Steeh clearly was ruling more on the good intentions of Congress than he was on the Constitutionality of the law, my guess is Judge Moon didn't want to see Health Care Reform turned into a referendum on abortion, at least in his courtroom. 

  
Yesterdays Virginia case was the first case ruled on that was brought to the court by a State, the other two were by organizations.  Virginia was defending a State Law that says Virginia Citizens are not obligated to comply with the Individual Mandate..  There is also a similar Lawsuit brought by twenty States pending in Florida where the Judge is expected to make a similar ruling.  I'm no expert but I suspect rulings made in a case brought by Individual and Groups of States might carry a little more weight than a ruling on a case brought by and anti abortion group.
 
Judge Henry Hudson brought up some interesting points in making his decision.. Some seemed fairly obvious..
 
The Government has never before passed a law that obligated citizens to purchase a product from a private supplier, and that would be a huge expansion of the Commerce Clause.  (no kidding where would it stop)
 
The Government has never tried to qualify inaction, declining to take part in commerce as something that can be regulated under the Commerce Clause  (I sure as hell hope not, what's the next thing I'll be forced to buy?) 
 
The Government is now trying to call the penalties for Non Compliance a Tax while the law clearly refers to them as a penalty.  To that Hudson reminded the Government that Congress and the President assured the American people that repeatedly that they weren't taxes.
 
Judge Henry Hudson ruled that it wasn't his prerogative to rule on the entire 2700 page law that had been rushed through Congress on Christmas Eve, therefore he no had way of telling if the separation of The Mandate from from the law invalidated the entire thing. 
 
In theory the next stop for the Virgina Case would be an appeal by the Federal Government to the Federal Appeals Court in Richmond, where, regardless of the ruling it will be appealed to the Supreme Court.
 
Here's where things get interesting.  There is no question in any-one's mind this will wind up in front of the Supreme Court Eventually  I'd personally prefer if it was the Multi State State Lawsuit being heard in Florida that makes it there and settles the matter, but regardless the SCOTUS will wind up making the finial determination.  So why not get it over with?
 
Virgina States Attorney Ken Cuccinelli has said he'd like to take the matter straight to DC and get it resolved.  He pointed out that continuing to play with the case for the next couple years was unfair to individuals, businesses and the states, because no-one knows how to plan.  Hard logic to argue with, he has a point.
 
On the other hand, the last thing Obama wants is for it to get to the High Court anytime soon.  As of now a ruling by the Court in favor of Obamacare is highly unlikely.  First of all Elena Kagan  was not just an Obama Appointee, she served as his White House Counsel, if Obamacare reaches the Court before the 2012 elections, she will likely recuse herself. If not considering she worked on the law, it's borderline impeachable.  Scratch one Pro Obamacare vote.  
 
That leaves eight judges and two probable outcomes..  The most likely would be a 5-3 Overturning the mandate and sending what's left of the law back to Congress...   The second is more interesting, there is a possibility that Anthony Kennedy might do something irrational and support the Government's argument.  That would result in a tie vote,,, in case of a tie, the SCOTUS would uphold the lower Courts Ruling, overturning the mandate, and sending the law back to see if Congress still has any interest in it..
 
So while the insurance companies raise their rates anticipating Obamacare, the American People and Industry will have to wait until Obama has a Court he thinks he can win with...